1. Overview
This Agreement
contains the complete terms and conditions that apply to you becoming an
affiliate in Oakstills.com's Affiliate Program. The purpose of this Agreement
is to allow HTML linking between your web site and the Oakstills.com web site.
Please note that throughout this Agreement, "we," "us," and
"our" refer to Oakstills.com, and "you," "your,"
and "yours" refer to the affiliate.
2. Affiliate
Obligations
2.1. We
auto-approve applications does not imply that we may not re-evaluate your
application at a later time. We may reject your application at our sole
discretion. We may cancel your application if we determine that your site is
unsuitable for our Program, including if it:
2.1.1. Promotes
sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist others to infringe
on any copyright, trademark or other intellectual property rights or to violate
the law
2.1.6. Includes "Merchant" or variations or misspellings thereof in
its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory,
obscene, harassing, or racially, ethnically or otherwise objectionable to us in
our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of
commission from other affiliates in our program.
2.1.9. You may not create or design your website or any other website that you
operate, explicitly or implied in a manner which resembles our website nor
design your website in a manner which leads customers to believe you are Oakstills.com
or any other affiliated business.
2.2. As a member
of Oakstills.com's Affiliate Program, you will have access to Affiliate Account
Manager. Here you will be able to review our Program’s details and
previously-published affiliate newsletters, download HTML code (that provides
for links to web pages within the Oakstills.com web site) and banner creatives,
browse and get tracking codes for our coupons and deals. In order for us to
accurately keep track of all guest visits from your site to ours, you must use
the HTML code that we provide for each banner, text link, or other affiliate
link we provide you with.
2.3. Oakstills.com
reserves the right, at any time, to review your placement and approve the use
of Your Links and require that you change the placement or use to comply with
the guidelines provided to you.
2.4. The
maintenance and the updating of your site will be your responsibility. We may
monitor your site as we feel necessary to make sure that it is up-to-date and
to notify you of any changes that we feel should enhance your performance.
2.5. It is
entirely your responsibility to follow all applicable intellectual property and
other laws that pertain to your site. You must have express permission to use
any person's copyrighted material, whether it be a writing, an image, or any
other copyrightable work. We will not be responsible (and you will be solely
responsible) if you use another person's copyrighted material or other
intellectual property in violation of the law or any third party rights.
3. Oakstills.com
Rights and Obligations
3.1. We have the
right to monitor your site at any time to determine if you are following the
terms and conditions of this Agreement. We may notify you of any changes to
your site that we feel should be made, or to make sure that your links to our
web site are appropriate and to notify further you of any changes that we feel
should be made. If you do not make the changes to your site that we feel are
necessary, we reserve the right to terminate your participation in the Oakstills.com
Affiliate Program.
3.2. Oakstills.com
reserves the right to terminate this Agreement and your participation in the Oakstills.com
Affiliate Program immediately and without notice to you should you commit fraud
in your use of the Oakstills.com Affiliate Program or should you abuse this
program in any way. If such fraud or abuse is detected, Oakstills.com shall not
be liable to you for any commissions for such fraudulent sales.
3.3. This
Agreement will begin upon our acceptance of your Affiliate application, and
will continue unless terminated hereunder.
4. Termination
Either you or we
may end this Agreement AT ANY TIME, with or without cause, by giving the other
party written notice. Written notice can be in the form of mail, email or fax.
In addition, this Agreement will terminate immediately upon any breach of this
Agreement by you.
5. Modification
We may modify
any of the terms and conditions in this Agreement at any time at our sole
discretion. In such event, you will be notified by email. Modifications may
include, but are not limited to, changes in the payment procedures and Oakstills.com's
Affiliate Program rules. If any modification is unacceptable to you, your only
option is to end this Agreement. Your continued participation in Oakstills.com's
Affiliate Program following the posting of the change notice or new Agreement
on our site will indicate your agreement to the changes.
6. Payment
Oakstills.com uses a third party to handle all of the
tracking and payment. The third party is the Affiliatly.com affiliate network.
Kindly review the network’s payment terms and conditions.
7. Access to
Affiliate Account Interface
You will create
a password so that you may enter Affiliatly’s secure affiliate account
interface. From their site you will be able to receive your reports that will
describe our calculation of the commissions due to you.
8. Promotion
Restrictions
8.1. You are
free to promote your own web sites, but naturally any promotion that mentions Oakstills.com
could be perceived by the public or the press as a joint effort. You should
know that certain forms of advertising are always prohibited by Oakstills.com.
For example, advertising commonly referred to as "spamming" is unacceptable
to us and could cause damage to our name. Other generally prohibited forms of
advertising include the use of unsolicited commercial email (UCE), postings to
non-commercial newsgroups and cross-posting to multiple newsgroups at once. In
addition, you may not advertise in any way that effectively conceals or
misrepresents your identity, your domain name, or your return email address.
You may use mailings to customers to promote Oakstills.com so long as the
recipient is already a customer or subscriber of your services or web site, and
recipients have the option to remove themselves from future mailings. Also, you
may post to newsgroups to promote Oakstills.com so long as the news group
specifically welcomes commercial messages. At all times, you must clearly
represent yourself and your web sites as independent from Oakstills.com. If it
comes to our attention that you are spamming, we will consider that cause for
immediate termination of this Agreement and your participation in the Oakstills.com
Affiliate Program. Any pending balances owed to you will not be paid if your
account is terminated due to such unacceptable advertising or solicitation.
8.2. Affiliates
that among other keywords or exclusively bid in their Pay-Per-Click campaigns
on keywords such as oakstills.com, oakstills, href@@http://www.oakstills@@@@www.oakstills@@href, href@@http://www.oakstills.com@@@@www.oakstills.com@@href,
and/or any misspellings or similar alterations of these – be it separately or
in combination with other keywords – and do not direct the traffic from such
campaigns to their own website prior to re-directing it to ours, will be
considered trademark violators, and will be banned from Merchant’s Affiliate
Program. We will do everything possible to contact the affiliate prior to the
ban. However, we reserve the right to expel any trademark violator from our
affiliate program without prior notice, and on the first occurrence of such PPC
bidding behavior.
8.3. Affiliates
are not prohibited from keying in prospect’s information into the lead form as
long as the prospects’ information is real and true, and these are valid leads
(i.e. sincerely interested in Merchant’s service).
8.4. Affiliate
shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic
Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or
Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to
consumers from the time the consumer clicks on a qualifying link until such
time as the consumer has fully exited Merchant’s site (i.e., no page from our
site or any Oakstills.com’s content or branding is visible on the end-user’s
screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean
an application that (a) through accidental or direct intent causes the
overwriting of affiliate and non affiliate commission tracking cookies through
any other means than a customer initiated click on a qualifying link on a web
page or email; (b) intercepts searches to redirect traffic through an installed
software, thereby causing, pop ups, commission tracking cookies to be put in
place or other commission tracking cookies to be overwritten where a user would
under normal circumstances have arrived at the same destination through the
results given by the search (search engines being, but not limited to, Google,
MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory
engines); (c) set commission tracking cookies through loading of Merchant site
in . s, hidden links and automatic pop ups that open Oakstills.com’s site;
(d) targets text on web sites, other than those web sites 100% owned by the
application owner, for the purpose of contextual marketing; (e) removes,
replaces or blocks the visibility of Affiliate banners with any other banners,
other than those that are on web sites 100% owned by the owner of the
application.
9. Grant of
Licenses
9.1. We grant to
you a non-exclusive, non-transferable, revocable right to (i) access our site
through HTML links solely in accordance with the terms of this Agreement and
(ii) solely in connection with such links, to use our logos, trade names,
trademarks, and similar identifying material (collectively, the "Licensed
Materials") that we provide to you or authorize for such purpose. You are
only entitled to use the Licensed Materials to the extent that you are a member
in good standing of Oakstills.com's Affiliate Program. You agree that all uses
of the Licensed Materials will be on behalf of Oakstills.com and the good will
associated therewith will inure to the sole benefit of Oakstills.com.
9.2. Each party
agrees not to use the other's proprietary materials in any manner that is
disparaging, misleading, obscene or that otherwise portrays the party in a
negative light. Each party reserves all of its respective rights in the
proprietary materials covered by this license. Other than the license granted
in this Agreement, each party retains all right, title, and interest to its
respective rights and no right, title, or interest is transferred to the other.
10. Disclaimer
Oakstills.com makes no express or implied representations or warranties regarding Oakstills.com's service and website or the products or services provided therein. Any implied warranties of Oakstills.com's ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
11.
Representations and Warranties
You represent
and warrant that:
11.1. This
Agreement has been duly and validly executed and delivered by you and
constitutes your legal, valid, and binding obligation, enforceable against you
in accordance with its terms;
11.2. You have
the full right, power, and authority to enter into and be bound by the terms
and conditions of this Agreement and to perform your obligations under this
Agreement, without the approval or consent of any other party;
11.3. You have
sufficient right, title, and interest in and to the rights granted to us in
this Agreement.
12. Limitations
of Liability
We will not be liable to you with respect to any subject matter of this agreement under any contract, negligence, tort, strict liability, or other legal or equitable theory for any indirect, incidental, consequential, special, or exemplary damages (including, without limitation, loss of revenue or goodwill or anticipated profits or lost business), even if we have been advised of the possibility of such damages. Furthermore, notwithstanding anything to the contrary contained in this agreement, in no event shall Oakstills.com's cumulative liability to you arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort, or other legal or equitable theory, exceed the total commission fees paid to you under this agreement.
13.
Indemnification
You hereby agree
to indemnify and hold harmless Oakstills.com, and its subsidiaries and
affiliates, and their directors, officers, employees, agents, shareholders,
partners, members, and other owners, against any and all claims, actions,
demands, liabilities, losses, damages, judgments, settlements, costs, and expenses
(including reasonable attorneys' fees) (any or all of the foregoing hereinafter
referred to as "Losses") insofar as such Losses (or actions in
respect thereof) arise out of or are based on (i) any claim that our use of the
affiliate trademarks infringes on any trademark, trade name, service mark,
copyright, license, intellectual property, or other proprietary right of any
third party, (ii) any misrepresentation of a representation or warranty or
breach of a covenant and agreement made by you herein, or (iii) any claim
related to your site, including, without limitation, content therein not
attributable to us.
14.
Confidentiality
All confidential
information, including, but not limited to, any business, technical, financial,
and customer information, disclosed by one party to the other during
negotiation or the effective term of this Agreement which is marked
"Confidential," will remain the sole property of the disclosing
party, and each party will keep in confidence and not use or disclose such
proprietary information of the other party without express written permission
of the disclosing party.
15.
Miscellaneous
15.1. You agree
that you are an independent contractor, and nothing in this Agreement will
create any partnership, joint venture, agency, franchise, sales representative,
or employment relationship between you and Oakstills.com. You will have no
authority to make or accept any offers or representations on our behalf. You
will not make any statement, whether on Your Site or any other of Your Site or
otherwise, that reasonably would contradict anything in this Section.
15.2. Neither
party may assign its rights or obligations under this Agreement to any party,
except to a party who obtains all or substantially all of the business or
assets of a third party.
15.3. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New York without regard to the conflicts of laws and principles
thereof.
15.4. You may
not amend or waive any provision of this Agreement unless in writing and signed
by both parties.
15.5. This
Agreement represents the entire agreement between us and you, and shall
supersede all prior agreements and communications of the parties, oral or
written.
15.6. The
headings and titles contained in this Agreement are included for convenience
only, and shall not limit or otherwise affect the terms of this Agreement.
15.7. If any
provision of this Agreement is held to be invalid or unenforceable, that
provision shall be eliminated or limited to the minimum extent necessary such
that the intent of the parties is effectuated, and the remainder of this
agreement shall have full force and effect.